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1. ORS 279 Rewrite Project Presented by:
2. ORS 279 Rewrite Project
Background
Structure & Content
Summary of changes to date
Next steps
How to get involved
Questions, Feedback & Discussion
3. Why Rewrite ORS 279 ? Based on public works bid process
Not matched to market practice
Piece-meal changes made over the years
Current Version:
designed largely to address public improvements
Predates the influx of computers/software and other information technology changes.
Competitive Procurement: Low bid always gets job – either no consideration or onerous work needed to consider other procurement methodologies.
Net effect if current version: chapter 279 focuses primarily on public improvement procurements
Does not allow flexibility or limits ability for a public agency to consider other procurement methodologies.
Other reason identified during the last legislative interim chaired by Representative Wells.
Excessive legal fees you have to pay to understand it.
Statute is overly complex and convoluted lacks a logical flow and construction.
Does not fully permit the effective use of proposals – discussions are not possible with the disclosure of the proposals. Effectively negates best and final strategies
Provides no flexibility except under an exempted process to structure effective procurements strategies for new markets or technologies.
Lacks effective protest process – heavily oriented to escalating disputes and solicitation/award protest to courts.
Price agreements are not defined as contracts, making price agreement very difficult to establish in the context of ORS 279.
Multiple awards are not recognized under current 279. Making it difficult to award contracts to multiple contractors.
Excessive clauses related to construction overlap with other procurement adding complexity and costs to other types of procurements.
Lack of ability to delegate certain authorities in statute – No clear definition of authorities for state agency or authorities for rule making.
Flawed cooperative purchasing language – exemption only allows agreements between public agencies resulting from competitive bidding. Does not address authority for true joint cooperative purchasing.Current Version:
designed largely to address public improvements
Predates the influx of computers/software and other information technology changes.
Competitive Procurement: Low bid always gets job – either no consideration or onerous work needed to consider other procurement methodologies.
Net effect if current version: chapter 279 focuses primarily on public improvement procurements
Does not allow flexibility or limits ability for a public agency to consider other procurement methodologies.
Other reason identified during the last legislative interim chaired by Representative Wells.
Excessive legal fees you have to pay to understand it.
Statute is overly complex and convoluted lacks a logical flow and construction.
Does not fully permit the effective use of proposals – discussions are not possible with the disclosure of the proposals. Effectively negates best and final strategies
Provides no flexibility except under an exempted process to structure effective procurements strategies for new markets or technologies.
Lacks effective protest process – heavily oriented to escalating disputes and solicitation/award protest to courts.
Price agreements are not defined as contracts, making price agreement very difficult to establish in the context of ORS 279.
Multiple awards are not recognized under current 279. Making it difficult to award contracts to multiple contractors.
Excessive clauses related to construction overlap with other procurement adding complexity and costs to other types of procurements.
Lack of ability to delegate certain authorities in statute – No clear definition of authorities for state agency or authorities for rule making.
Flawed cooperative purchasing language – exemption only allows agreements between public agencies resulting from competitive bidding. Does not address authority for true joint cooperative purchasing.
4. Why Rewrite ORS 279 ?
5. The Rewrite -- Background 1997-1998 interim work group
Several Legislative Concepts
1999-2000 interim work group
Chaired by Rep. Larry Wells
Basic Design work
HR1 = Speaker to establish an interim work group to address ORS 279. 1st attempt failed because of funding & and resulted in only minor changes.
1997-1999 - Representative Sowa convened a public contracting work group which developed several successful legislative concepts. This group picked most of the low hanging fruit or quick fixs. As the group examined public contracting practices at closer range it began to see that the entire chapter was in need of a rewrite. This work group recommended a legislative concept to establish a task force to rewrite ORS 279. A bill was introduced, but failed to move forward due to fiscal impacts.
During the next interim Rep Lokan asked Representative Wells to lead a work group to again review public contracting practices. Since all the easy repairs were completed during the last session, this work group decided that a complete rewrite needed to take place. Rep Well’s work group laid the foundation for today’s rewrite effort. It developed the architecture of the proposed rewrite that included a concept design intended to provide a law that would result in effective and accountable procurement outcomes.
The group recognized that current ORS lacked the flexibility to achieve viable and accountable outcomes in today's modern market place. This was largely due to the fact that current statute is based on public construction where low bid is the prevalent practice. While this approach remains viable in the public works arena, it results in excessive time and ineffective outcomes when applies to public acquisitions in today’s market place.
1st attempt failed because of funding & and resulted in only minor changes.
1997-1999 - Representative Sowa convened a public contracting work group which developed several successful legislative concepts. This group picked most of the low hanging fruit or quick fixs. As the group examined public contracting practices at closer range it began to see that the entire chapter was in need of a rewrite. This work group recommended a legislative concept to establish a task force to rewrite ORS 279. A bill was introduced, but failed to move forward due to fiscal impacts.
During the next interim Rep Lokan asked Representative Wells to lead a work group to again review public contracting practices. Since all the easy repairs were completed during the last session, this work group decided that a complete rewrite needed to take place. Rep Well’s work group laid the foundation for today’s rewrite effort. It developed the architecture of the proposed rewrite that included a concept design intended to provide a law that would result in effective and accountable procurement outcomes.
The group recognized that current ORS lacked the flexibility to achieve viable and accountable outcomes in today's modern market place. This was largely due to the fact that current statute is based on public construction where low bid is the prevalent practice. While this approach remains viable in the public works arena, it results in excessive time and ineffective outcomes when applies to public acquisitions in today’s market place.
6. The Rewrite - How does it work? Special House Work Group
Rep. Garrard, Chair
Rep. Backlund
Rep. Barnhart
Rep. Knopp
Rep. Nolan
Stakeholder Brainstorming
Stakeholder task group writing
Interim Special Work Group members are Representative Bill Garrard, work group chair; Representative Tim Knopp (Ka-nope); Representative Phil Barnhardt; Representative Vic Backlund; and Representative Mary Nolan.
Charge and Expectations:
Goal: To replace ORS 279 with an effective, simplified procurement code developed in collaboration with stakeholders during the 2003 legislative session.
Expectations:
Involve all interested stakeholders in the dialog and rewrite
Utilize a collaborative process to achieve consensus supporting the revised recommendations
Apply brainstorming derived concepts where appropriate
Develop a legislative concept draft that provides an end-to-end procurement code for Oregon public agencies and submit as a recommendation to the Legislative Work Group chaired by Representative Garrard by December 1, 2002.
Procide progress reports and recommendations to the Legislative Work Group chared by Representative Garrard on a recurring basis.
Task Group & work plan authorized by work group on December 6, 2001. See the rewrite work completed and report back in the 2003 session.
Brainstorming: Initiative began with a Nov 29 brainstorming session that identified key concepts for change to report back to the House of Representative work group.
Among the outcomes from the brainstorming sessions are:
Qualification Based Selection
¨ QBS for all - qualification based selection
Exemptions & Alternative Procurement Processes
¨ PCR exemptions, cost savings to whom?
¨ Direct authority to use alternative procurements
¨ Clear authority and exceptions
¨ Alternative procurement methods
¨ Establish audit process - further define exemption authorities
¨ Strengthen the exemption process for alternative contract methods
Bid Process
¨ Improve protest process
¨ Deadline for court filing
Vendor Relations
¨ Vendor friendly administrative burden in contract management
¨ Contract management rules
¨ Appreciate vendors
¨ Consistency and predictability
¨ Honesty in process and consistency in marketplace
¨ Keep base values: fair, open process
¨ Solicitations: improve communication notification to vendors
Pre-Contracting Thought Process
¨ Contracting outcomes consistent with marketplace
¨ More business judgement
¨ Efficient use of funds (e.g., lease vs. purchase)
Review Process
¨ Legislate a review process for purchasing statute and rules
Segregate Public Improvement from Procurement
¨ Retain low bid as primary selection method (public improvements)
¨ Remove public works contracting constraints from other contract types
¨ Separate public improvement from procurement
Risk-Based Approach
¨ Balance contracting and bidding requirements with outcomes
¨ Clean up process for IGA (grants state and federal $$)
¨ Risk/process alignment
¨ Contracting process commensurate with risk
¨ Risk based approach
Incentive-Based Approach
¨ Incentives for good performance
¨ ROI (Return on Investment) approach to projects
¨ Shared risk/shared reward
Simplify Process
¨ Small community needs/issues
¨ Simplify processes (2 cards)
¨ Increase delegated authority to purchase
¨ Simple language/process/legal review
Link right process to desired outcome (service or product)
¨ Modify price agreement (use/process)
¨ Modify spot buy process (make easy)
¨ Recognize price agreements
¨ Acquisition thresholds consistent in the marketplace
¨ Resource based vs. deliverable
¨ Best value vs. low price
¨ More flexible T’s and C’s
¨ Flexibility for processes
¨ Standard menu of source selection methods
Clarification of roles and responsibilities, accountability
¨ Allocation of responsibility
¨ Address responsiveness/responsible bidder issue
¨ Avoid ambiguity, define accountability, set appeal process
Cooperative purchasing & intergovernmental relations
¨ (no details)
Accountability
¨ Statute written from individual accountability perspective
¨ Accountability expectations
Modernize
¨ Recognize changing technology
¨ Electronic contracting
¨ Modernization
¨ Update online procurement system
Better organized statute
¨ Improve and expand definitions
¨ Eliminate conflicting definitions/provisions
¨ State vs. local requirements
¨ End to end integration of statute
¨ Better organized
Useful Procurement Statutes
¨ Address service contract issues
¨ Forum for facilitated negotiations
¨ Common purpose procurement (Canada model)
¨ Include best practices today
¨ ABA model procurement code (structure)
¨ Usable procurement models
Social Policy
¨ Social policy clarity & consistency
¨ Eliminate non-direct value (to agency) requirements from the contracting process
Streamline
¨ Streamline review process
¨ Streamline legal review process (use specific timelines)
¨ Streamline processes for bidders
¨ Pull all public purchasing statutes under one law
The Task Group lead by three co chairs representing private and public sector created its own substructure to address specific topic areas and to produce recommendations to the legislative work group -- has met monthly since January 2002, for the past several months meets every other week.
Topic Groups -- Various topic groups are formed around the draft articles developed during the last interim work group on public contracting. Additional groups were formed to address other issues that have arisen during this effort. Topic groups have met weekly since January 2002.
The task group and topic groups are open to all stake holder participation. I’ll give you more information at the end of this presentation about how you can learn more.
Interim Special Work Group members are Representative Bill Garrard, work group chair; Representative Tim Knopp (Ka-nope); Representative Phil Barnhardt; Representative Vic Backlund; and Representative Mary Nolan.
Charge and Expectations:
Goal: To replace ORS 279 with an effective, simplified procurement code developed in collaboration with stakeholders during the 2003 legislative session.
Expectations:
Involve all interested stakeholders in the dialog and rewrite
Utilize a collaborative process to achieve consensus supporting the revised recommendations
Apply brainstorming derived concepts where appropriate
Develop a legislative concept draft that provides an end-to-end procurement code for Oregon public agencies and submit as a recommendation to the Legislative Work Group chaired by Representative Garrard by December 1, 2002.
Procide progress reports and recommendations to the Legislative Work Group chared by Representative Garrard on a recurring basis.
Task Group & work plan authorized by work group on December 6, 2001. See the rewrite work completed and report back in the 2003 session.
Brainstorming: Initiative began with a Nov 29 brainstorming session that identified key concepts for change to report back to the House of Representative work group.
Among the outcomes from the brainstorming sessions are:
Qualification Based Selection
¨ QBS for all - qualification based selection
Exemptions & Alternative Procurement Processes
¨ PCR exemptions, cost savings to whom?
¨ Direct authority to use alternative procurements
¨ Clear authority and exceptions
¨ Alternative procurement methods
¨ Establish audit process - further define exemption authorities
¨ Strengthen the exemption process for alternative contract methods
Bid Process
¨ Improve protest process
¨ Deadline for court filing
Vendor Relations
¨ Vendor friendly administrative burden in contract management
¨ Contract management rules
¨ Appreciate vendors
¨ Consistency and predictability
¨ Honesty in process and consistency in marketplace
¨ Keep base values: fair, open process
¨ Solicitations: improve communication notification to vendors
Pre-Contracting Thought Process
¨ Contracting outcomes consistent with marketplace
¨ More business judgement
¨ Efficient use of funds (e.g., lease vs. purchase)
Review Process
¨ Legislate a review process for purchasing statute and rules
Segregate Public Improvement from Procurement
¨ Retain low bid as primary selection method (public improvements)
¨ Remove public works contracting constraints from other contract types
¨ Separate public improvement from procurement
Risk-Based Approach
¨ Balance contracting and bidding requirements with outcomes
¨ Clean up process for IGA (grants state and federal $$)
¨ Risk/process alignment
¨ Contracting process commensurate with risk
¨ Risk based approach
Incentive-Based Approach
¨ Incentives for good performance
¨ ROI (Return on Investment) approach to projects
¨ Shared risk/shared reward
Simplify Process
¨ Small community needs/issues
¨ Simplify processes (2 cards)
¨ Increase delegated authority to purchase
¨ Simple language/process/legal review
Link right process to desired outcome (service or product)
¨ Modify price agreement (use/process)
¨ Modify spot buy process (make easy)
¨ Recognize price agreements
¨ Acquisition thresholds consistent in the marketplace
¨ Resource based vs. deliverable
¨ Best value vs. low price
¨ More flexible T’s and C’s
¨ Flexibility for processes
¨ Standard menu of source selection methods
Clarification of roles and responsibilities, accountability
¨ Allocation of responsibility
¨ Address responsiveness/responsible bidder issue
¨ Avoid ambiguity, define accountability, set appeal process
Cooperative purchasing & intergovernmental relations
¨ (no details)
Accountability
¨ Statute written from individual accountability perspective
¨ Accountability expectations
Modernize
¨ Recognize changing technology
¨ Electronic contracting
¨ Modernization
¨ Update online procurement system
Better organized statute
¨ Improve and expand definitions
¨ Eliminate conflicting definitions/provisions
¨ State vs. local requirements
¨ End to end integration of statute
¨ Better organized
Useful Procurement Statutes
¨ Address service contract issues
¨ Forum for facilitated negotiations
¨ Common purpose procurement (Canada model)
¨ Include best practices today
¨ ABA model procurement code (structure)
¨ Usable procurement models
Social Policy
¨ Social policy clarity & consistency
¨ Eliminate non-direct value (to agency) requirements from the contracting process
Streamline
¨ Streamline review process
¨ Streamline legal review process (use specific timelines)
¨ Streamline processes for bidders
¨ Pull all public purchasing statutes under one law
The Task Group lead by three co chairs representing private and public sector created its own substructure to address specific topic areas and to produce recommendations to the legislative work group -- has met monthly since January 2002, for the past several months meets every other week.
Topic Groups -- Various topic groups are formed around the draft articles developed during the last interim work group on public contracting. Additional groups were formed to address other issues that have arisen during this effort. Topic groups have met weekly since January 2002.
The task group and topic groups are open to all stake holder participation. I’ll give you more information at the end of this presentation about how you can learn more.
7. Brainstorming Improve Protest Process
Vendor Relations- consistency and predictability
Vendor Friendly Administrative Burden
Outcomes consistent with marketplace
Risk based approach
Encourage incentive based approach
Simplify process/Streamline
8. Brainstorming Modernize – changing technology
Better organized statute
Address service contract issues
Best practices / ABA Model Code
Link Process to outcomes
9. Interim Work Structure House Work Group on Public Contracting:
5 legislative members
4 meetings
Set charge, expectation, provide feedback to issue groups
Approve final concepts to submit to 2003 regular legislative session
Task Group on ORS 279 Rewrite:
3 co-chairs representing public and private sectors
Meets at least monthly – meeting now every other week
Forwards consensus recommendations to legislative work group
Drafting Group:
Prepares draft statutory proposals based on consensus agreements from the Rewrite Task Group.
General Procurement Topic Groups:
Method of source selection
Contracting perimeters
Specification
Alternate source selection
Personal services
Client provider services
Legal remedies
OMWESB
Ethics
Intergovernmental relations/ cooperative purchasing
Contract preferences
Products and services of individuals with disabilities
General provisions/authority/exceptions/definitions
Public Improvement Topic Group:
Public Improvement contracting
Exemptions
Architects and Engineering
Legal Remedies
House Work Group on Public Contracting:
5 legislative members
4 meetings
Set charge, expectation, provide feedback to issue groups
Approve final concepts to submit to 2003 regular legislative session
Task Group on ORS 279 Rewrite:
3 co-chairs representing public and private sectors
Meets at least monthly – meeting now every other week
Forwards consensus recommendations to legislative work group
Drafting Group:
Prepares draft statutory proposals based on consensus agreements from the Rewrite Task Group.
General Procurement Topic Groups:
Method of source selection
Contracting perimeters
Specification
Alternate source selection
Personal services
Client provider services
Legal remedies
OMWESB
Ethics
Intergovernmental relations/ cooperative purchasing
Contract preferences
Products and services of individuals with disabilities
General provisions/authority/exceptions/definitions
Public Improvement Topic Group:
Public Improvement contracting
Exemptions
Architects and Engineering
Legal Remedies
10. Key Guiding Principles Simplify process and policy for easy understanding – eliminate conflicts
Standardize unless outcomes are compromised
Separate public construction and general procurements
Change general procurements as a priority
Change to public constructions as full consensus permits
Accountability for both process and outcomes
13. ORS 279 – Part B Definitions
General Provisions
Methods of Source Selections
Cancellation, Rejection, Delays
Contract Formation
Specifications
Contract Preferences
Legal Remedies
14. ORS 279 – Part C Definitions
Purpose
A&E
Procurement of Public Improvements
Public Improvement Contract Provisions
Payments
Subcontractors
Termination of Contract for Public Interest Reasons
15. Changes @ 50,000 ft. General Procurements – 279B Source Selection and Contract Formation
Consistent procedures for source selection methods
Competitive Sealed Bid or Competitive Sealed Proposal
Intermediate procurements $5K-$75K
Special Procurements
Notice of Intent to award required
16. Changes @ 50,000 ft General Procurements – 279B Source Selection and Contract Formation
Multi-step bidding procedures
Price agreements explicitly authorized
Determination of non responsibility rather than responsibility
Qualified Products List
17. Changes @ 50,000 ft General Procurements – 279B Specifications
Promote optimal value, suitability for intended purpose and reasonably promote competition
Take reasonable measures to prevent material competitive advantage if a person assists in preparation of specifications
Distinction between brand name or equal and brand name
18. Changes @ 50,000 ft General Procurements – 279B Legal Remedies
Standard Solicitation Protest Process
Standard Award Protest Process
Challenge Process for Exemption and Special Procurement determinations
Stay of award determination
19. Changes @ 50,000 ft General Procurements Contract Preferences
Made user friendly article references the award process
Streamline and standardize where feasible
Removes inactive and dated provisions
Separates state requirements from public agency requirements
20. Changes @ 50,000 ft ORS 279 C Construction New concept consensus
Architect, Engineering, Land Surveyors & Related Services
Performance & Payment bonds
Competitive Proposals
Competitive Quotes
21. Changes @ 50,000 ft All Procurements Oregon Minority, Women and Emerging Small Business
Reformat and consolidate for ease of use
Resolve technical conflicts and clarify
22. Changes @ 50,000 ft All Procurements Cooperative Purchases
Resolve flaws in ORS 279.015
Administering vrs. purchasing agency
Identify types of cooperative procurements
Joint Cooperative Procurement
Permissive Cooperative Procurement
Appeal Process linked agency role
23. Other Changes etc… Applicability and Authority
Who and what is in
Who and what is out
Clear identification of rule making authority
Delegation – ability to delegate unless otherwise prevented
Effective Date – March 2005
24. What is left to do? General Provisions
State Purchasing provisions
Contract Preferences
Cooperative Procurement
Drafting Team work
Legislative Counsel Draft
Bill introduction early December
25. How to get involved… To be added to list serve – Cara.L.Filsinger
Participate in task group (Oct 30) or topic group
Provide feedback to co-chairs
Jessica Harris -- jessicah@agc-oregon.org
Sue Klobertanz -- sklobertanz@ci.portland.or.us
Dugan Petty -- dugan.a.petty@state.or .us
26. Questions & Answers
27. Feed back …
